1. This is an application for leave to appeal to His Majesty In Council from an order passed by a Bench of this Court in revision on the civil side. The facts are very peculiar. On 20th January 1920, a Hindu widow Mt. Danni Kuar died and it is alleged that the estate devolved on two collaterals who were brothers, namely, Janeshwar Das and Badri Das. Badri Das predeceased Janeshwar Das. The latter left three widows, Mt. Jaimala Kuer, Mt. Chando Kuer and Me. Bhagwati Kuer. It appears that the Court of Wards took over the estate of these widows which bad been in the possession of Janeshwar Das. After the estate was so taken over, the only person who could bring the suit in respect of any part of the estate of Janeshwar Das was the Court of Wards through the Collector. As the property which had been in the possession of Mt. Danni Kuer never came into tha posses, sion of Janeshwar Das or Badri Das and remained in the possession of the principal defendant Atma Bam, who olafmed to be the adopted son of Mt. Danni Kuer, the Collector on 20th January 1923, that is, on the last day of the expiry of 12 years from the date of the death of Mt. Danni Kuer, instituted a suit in his sole name for recovery of possession of the estate against Atma Bam and two others, one of whom was his transferee. This suit remained pending for some time, when apparently the Collector made some report to the Board of Bevenue for permission to withdraw the suit unconditionally, as in his opinion he should not proceed, further against the defendants. On 5th April 1932 the Board of Bevenue, acting on behalf of the Court of Warcls sanctioned the unconditional withdrawal of the suit. Accordingly, on 19th April 1932, when there was only one plaintiff before the Court, the Collector applied for an unconditional withdrawal of the suit. Having come to know of this application, the two widows (the third being dead at the time) filed an application on 19th April 1932, praying that the Collector should not be allowed to with, draw the suit, as that would amount to an abuse of the process of Court and that the widows themselves should be permitted to continue the suit; in place of the Collector. A date was fixed for the hearing of this application after any objection that the Collector might make. It came up for disposal on 9th May 1932. Before the arguments commenced, a further application was made on that date on behalf of the two widows, Mt. Jaimala Kuer and Mt. Chando Kuar, as well as Beni Prasad, a contingent reversioner, praying that they be joinei as plaintiffs in the suit. Both these applications were strenuously opposed by the Government pleader on behalf of the Collector. The case of Beni Prasai was that he was not only a contingent reversioner, but there had been some sort of an agreement with the Court of Wards, under which he had agreed to finance the litigation. The learned Subordinate Judge, in a lengthy order dated 11th May 1932, came to the conclusion that these two applications could not be entertained and that therefore the Colleotor's application for un-conditional withdrawal should be granted. The result was that he dismissed tha applications of the two widows and of Beni Prasad and then allowed the Col. lector to withdraw the suit.
2. From this order, a civil revision was filed by the two widows in the High Court. Beni Prasad did nob originally file any revision himself, but be was made a pro forma respondent in the revision filed by the two widows. Later on, he applied to the High Court to have his name transferred from the array of the respondents to that of the applicants in the revision, and the Bench allowed this application. The learned Judges then considered the application on the merits and held that the two widows were not entitled to continue the suit, inasmuch as their estate was vested in the Court of Wards which alone could continue the suit, and if the Court of Wards chose to withdraw the suit, the widows could not continue the suit so long as the estate was not released. But as regards the application of Beni Frasad made in the Court below, the learned Judges came to the conclusion that the suit instituted by the Collector on behalf of the two ladies was
a suit of a representative character and it was necessary for the Court below to allow Beni Prasad to be impleaded as the plaintiff.
3. Holding that the suit had been instituted in a representative capacity, the learned Judges held that these ladies had a life interest and during their lives they represented the entire estate inoluding the interest of the future reversioners, and inasmuch as they had rendered themselves incapable of safeguarding the rights of the reversioners, (the estate being under the Court of Wards), the contingent reversioner was entitled to continue the litigation if they were unable to do so and that therefore the reversioner Beni Prasad should be permitted to continue it. The learned Judges considered that the application of Beni Prasad had been rejected summarily and that it should not have been disallowed. They accordingly ordered that the order of the Court below dismissing his application should be set aside and Beni Prasad be made a plaintiff in the suit and the suit be tried as between Beni Prasad on the one hand and the original defendants on the other. The application of the ladies however failed.
4. The learned Counsel for the defendants in this application has first urged that he can appeal from this order as of right. The value of the subject matter in dispute is no doubt considerably over a Iao of rupees. But no decree has yet been passed in the suit. The contention on behalf of the applicant is that the estate having vested in the Court of Wards, contingent reversioner had no loo us standi at all to be made a plaintiff or to continue the suit. He argues that the only plaintiff was the Collector who had filed the suit and if he applied to withdraw the suit, the reversioner could not be allowed to continue it in spite of the Collector's protest. The learned Counsel relies on the faot that there was no allegation of any collusion between the Collector, who was acting under the sanction of the Board of Revenue, and the defendants. It is urged before us that tha contingent reversioner was in no sense a necessary party to the suit and the Court below was not bound to implead him, and that it was purely a matter of discretion! whether he should be made a pro forma defendant or not, and that inasmuch as-the Court below declined to exercise that discretion and refused to make him a party, the High Court had no jurisdiction under Section 115, Civil P.C., to interfere with that order. It is also urged that the learned Judge had not disposed of the application summarily but he had given full reasons, and even if he had erred in. law, that was no ground for interference' in revision.
5. It is also urged that a cardinal point in the case has been decided ; indeed, it is argued that the main points in the case have been disposed of by the High Court's judgment. Ordinarily a suit is deemed to have been instituted against a new plaintiff from the date on which he is impleaded : vide Section 22, Lim. Act ; and so it is pointed out that the plea of limitation, would be completely destroyed if it be held that the suit was of a representative character having been instituted in the interest of and on behalf of Badri Prasad as well. It is further pointed out that if the reversioner failed to file any suit himself within the period of limitation he has himself to thank and should not be allowed to take advantage of the suit by the Collector.
6. We may also mention that after the order of the High Court, the Court of Wards has now released the estate and the persons entitled to maintain the suit are the widows, The learned Counsel further emphasizes the fact that the relief claimed in the suit was not really one for declaration of title, but for reoovery of possession. He says, in other words, that it was not a declaratory suit brought by a reversioner, as to whom it cannot be certain whether he would succeed, and so in such a declaratory case, the suit would of necessity be of a representative character, and argues that where the relief claimed is for actual possession, the possession cannot be delivered to a mere contingent reversioner who has no immediate right to intervene at present.
7. We are of opinion that the applicant is mot entitled as of right to appeal from the order passed on the revisional side of this Court. Under Section 109(a), an appeal lies from any decree or final order passed in appeal by a High Court. This was an order passed not in appeal at all, but on the revisional side. We must accordingly decide that the defendant applicant is not entitled to appeal as of right. The next question is whether this is a case which should be certified to be a fit one for appeal to His Majesty in Council under Section 109(c). The questions raised in this case are no doubt substantial and important questions of law and are also of general importance. Whether a contingent reversioner is entitled to continue a suit filed by a Collector, even though he applies to be made a party after the expiry of the period of limitation, is a question of some importance. Similarly, the question whether a suit brought for recovery of possession by Hindu widows, or by the Court of Wards on their behalf, is a suit of a representative character, brought in the interest of the whole body of reversioners, so that the contingent reversioner also not only can be im pleaded but must be im pleaded and if he asks for such a prayer, the Court would be acting with material irregularity in the exercise of its jurisdiction if it refuses. The further question is whether where the Court below has refused to bring such a contingent reversioner on the record, the High Court can or cannot interfere in revision on the ground that it was the duty of the Court to make him a party and not a merei matter of discretion for the Court. The main difficulty in this case is that it may be possible for the defendants applicants to raise these pleas onoe again when a decree is finally passed against them by the Court below and they come up in appeal to the High Court. But there is such a possibility in all appeals from order as distinct from decrees. Before certifying a case to be a fit one for appeal, we must bear in mind that their Lordships of the Privy Council are not unnecessarily troubled more than onoe in disposing of the matter. On the other hand if the substantial questions of law which principally arise in a case go to its very root and are the foundation of the pleas raised by the defendants touching the question of the locus standi of the plaintiff and the plea of limitation, there would be a considerable waste of time, energy and labour in allowing the parties to have the questions of fact in the cas& fought out at length while the substantial and main questions of law still remain undisposed of finally. In the case of Abdtkl Bahman v. Cassim and Sons (1) at p. 247 (of 1933 A. L. J.), their Lordships of the Privy Council observed:
Their Lordships would only add that the enforcement of this principle (i.e. that an appeal under Section 109(a), Civil P.C., does not lie where the suit is still a live suit) involves no praotioal hardship, inasmuch as, in a proper case, it is always open to the appellate Court to give a special certification under Section 109(c).
8. It accordingly follows that the speoial; power of oertifying a case to be a fit one for appeal has been conferred on the High Court to meet particularly hard case s, and that on such a speoial certificate having been given the appeal to His Majesty i in Council becomes competent. Having given our best consideration to this case, we have come to the conclusion that this is a fit case in which the special certificate should be granted. The case is of a very high valuation and the question of the factum of validity of adoption set up by defendant 1 will involve the production of considerable evidence and if the findings of the two Courts are concurrent the case may nob have to go to their Lordships again. We therefore certify that this case is a fit one for appeal to His Majesty in Council under Section 109 (c), Civil P.C.
9. We may add that our granting the certificate in no way amounts to an order staying the proceedings in the Court below. That is a matter which will be dealt with separately when an application for stay of proceedings is made. It will be then for us to consider whether in view of any apprehension that an evidenoe may be destroyed, suoh evidence should not be ordered to be recorded.